United States v. Anthony Lamar Dye

U
         USCA11 Case: 20-12838     Date Filed: 03/23/2021    Page: 1 of 3



                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 20-12838
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 7:19-cr-00014-WLS-TQL-1


UNITED STATES OF AMERICA,

                                                              Plaintiff - Appellee,

                                    versus

ANTHONY LAMAR DYE,

                                                            Defendant - Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                        ________________________

                               (March 23, 2021)

Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

      Anthony Dye was sentenced to serve 66 months in prison after pleading

guilty, under a written plea agreement, to possession of cocaine with intent to
          USCA11 Case: 20-12838       Date Filed: 03/23/2021    Page: 2 of 3



distribute and possession of a stolen gun. He now appeals his sentence, arguing that

the district court erred when it applied U.S.S.G. § 2K2.1(a)(4)(A) to calculate his

base offense level based on a prior conviction.

      The government has moved to dismiss Dye’s appeal on the ground that Dye

waived his right to appeal the sentence in the plea agreement. In that agreement,

Dye agreed to “waive[] any right to appeal the imposition of sentence” unless (a) the

district court imposed a sentence that exceeded either “the advisory guideline range

as that range has been calculated by the District Court” at sentencing or the statutory

maximum sentence or (b) the government appealed. Dye has not filed a response to

the government’s motion.

      We will enforce an appeal waiver that was made knowingly and voluntarily.

United States v. Bascomb, 

451 F.3d 1292

, 1294 (11th Cir. 2006); United States v.

Bushert, 

997 F.2d 1343

, 1350–51 (11th Cir. 1993). To prove that a waiver was made

knowingly and voluntarily, the government must show that (1) the district court

specifically questioned the defendant about the waiver during the plea colloquy; or

(2) the record makes clear that the defendant otherwise understood the full

significance of the waiver. 

Bushert, 997 F.2d at 1351

.

      Here, Dye’s appeal waiver was made knowingly and voluntarily. During the

plea colloquy, the district court specifically questioned Dye about the terms of the

appeal waiver. The court advised Dye that he was “waiving or giving up [his] right


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          USCA11 Case: 20-12838       Date Filed: 03/23/2021   Page: 3 of 3



to appeal directly . . . any sentence that the Court might give based on your pleading

guilty . . . under the plea agreement except under some very specific circumstances,”

and Dye said he understood. The court then covered those exceptions, stating that

Dye could appeal if the sentence exceeded the guideline range or if the government

appealed, but that he would otherwise be “giving up forever the right to appeal any

sentence the Court might give.” Dye confirmed that he understood and had no

questions about the waiver. The record also shows that Dye initialed each page of

the plea agreement, and that the final two pages were signed by the prosecutor, Day,

and Dye’s counsel. In addition, it reveals that Dye denied having been “forced,”

“coerced,” or “threatened” “in any way” to obtain his agreement to the written plea

agreement, which, as we have noted, included the plea waiver we have discussed.

      Because the appeal waiver is valid, it bars Dye’s appeal of his sentence unless

an exception applies. But no exception does because the sentence was within the

guideline range as determined by the district court at sentencing, which was below

the statutory maximum, and the government has not appealed.            We therefore

GRANT the government’s motion to dismiss.

      DISMISSED.




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